Porn purveyors claim fair use in record labels’ lawsuit

Eleven music labels are suing a porn company for allegedly using their music …

Sometimes it seems like porn studios can get away with practically anything—that is, unless they are using popular music in ways that the major music labels don't approve of. Warner Bros. and 10 other music labels have banded together and filed suit against porn purveyors RK Netmedia and RealityKings.com for allegedly using unlicensed music in "hundreds of extreme hardcore pornographic videos." The labels want $150,000 per violation—of which there are many cited in the complaint—but RK Netmedia says it should all be covered under fair use.

In their complaint, Warner Bros. and gang claim that RK Netmedia "engaged in copyright infringement of the most blatant and offensive kind." Not only does the company make millions from subscribers to its website, RK also licenses videos to satellite TV broadcasters. The music labels appear to have a blanket policy not to license their works for use in porn, and therefore all of the music used in the porn videos must be unlicensed, say the music labels.

"Defendants simply stole these sound recordings and musical compositions, synchronizing Plaintiffs' works more than 500 times into the soundtrack of their pornographic videos without license or consent from Plaintiffs, apparently hoping that their conduct would go unnoticed," reads the complaint.

The twist here is the nature of the videos and the music in them. True to its name, the porn site films its videos in reality show style—that is, the studio takes its stars to "real, operating nightclubs" and records whatever unscripted action may occur, RK Netmedia attorney Marc Randazza told Ars. As such, the music used in the videos isn't being dubbed over or played on a soundstage; Randazza says it's just the music being played in the background at the club.

"When you have live footage at a football game, sometimes you're gonna get a shot of someone taking off their clothes and running across the field," Randazza said. "We really don't have control over the environment."

Basically, RK Netmedia believes its videos are the adult equivalent of the dancing baby on YouTube—the music is blaring in the background and, as such, it appearance in the videos is covered by fair use. This, however, is not what the record labels think. According to the complaint, the music is often featured prominently in the videos, as well as advertisements for the videos, and that the actors are sometimes lip syncing to the lyrics as they get it on.

"In most cases, the majority of each song is played during the Video, serving as musical accompaniment for the sexual activity," wrote the record labels. "In other instances the title of the song (or a variation on the title of the song) also is used as the title of the Video, or the song is used to set the 'theme' for the Video or drive the action during the scene."

The scenario laid out by the complaint is not as, er, innocent as RK Netmedia says. Randazza told Ars that this claim is simply "not accurate," however, and that the company plans to push the fair use angle heavily in its defense. He noted that the company has "nothing but the utmost respect for others' copyrights," but that music studios shouldn't be able to control something going on while someone is filming a reality production. "I'd be very troubled if copyright extended that far," Randazza said.

Of course, RK Netmedia is not only fighting the good fight for fair use—the company faces millions of dollars in damages if the music labels prevail. The complaint lists out several hundred songs that they believe were used illegally in the videos and, at $150,000 a pop, those numbers could add up quickly.